right to reside - help please!

[snowpony]

I really hope someone can help me with this as it's a pretty awful situation.

my friend, who is an EU citizen moved to the UK with her husband. He had right to remain and a working permit (i've seen this). He worked in the UK for 3 years and she was a stay at home mum during this time. He died recently so she has had to apply for benefits but has had a letter saying that she does not have a right to reside and therefore cannot apply for benefits or use the NHS. Is this true? is there anything that can be done?

We're the children born in the UK? That may make a big difference but it's not straightforward.

No, but they are settled in school here.

She needs to get a job and she can then claim tax credits etc. A British person would not be entitled to work replacement benefits if they are fit to work and it's the same for eu citizens. In order to claim she needs to be a worker, or seeking work. So she could get income based JS A providing she fulfils the criteria by attending interviews and all that stuff and consequently tax credits. After 5 years here legally, so in 2 years time, she can apply for residency. There did used to be a shortcut in cases of death of a spouse but it may have been changed as i cant find any reference to it.

Yes I thought there was, this is on gov.uk website. So what your friend needs to do is appeal the decision of refusal of benefits arguing she has the right to reside as below. AND make an application for residency as below. Once she's made the application for residency she MUST apply for benefits again as the original appealed decision may be refused. Once the paperwork is through for the residency they will pay the benefits from the date of the residency. Keep the appeal running though in order to get the benefits from the first date of claim. However she will still need to meet the qualifying criteria. What benefits has she been refused?

Retained rights of residence
You can also apply if you used to have a family member, or extended family member, who was a permanent resident or qualified person. This is called a ‘retained right of residence’. You may get this if, for example:

your marriage or civil partnership to an EEA citizen has ended (with a divorce, annulment or dissolution)
your EEA family member has died and you lived in the UK as their family member for at least one year before their death
you’re in education and you’re the child of an EEA citizen (or their current or former spouse or civil partner) who has left the UK or died
your child has a retained right of residence because they’re in education in the UK (and you have custody of them)
You’ll need to prove:

that your family member, or extended family member, was a permanent resident or qualified person at the time your family relationship ended
how the relationship ended, for example a death certificate or decree absolute if you divorced
You can only retain your right of residence as an extended family member if both the following apply:

you currently hold a valid residence card as the extended family member of an EEA national
you meet all of the relevant conditions
You cannot retain your right of residence if you were the unmarried partner of the EEA national and that relationship has broken down.

Hope that's clear?

Unfortunately her husband was here on a work visa and not a permanent resident, I think this excludes her.

Her right to reside was due to her having someone formally agreeing to support her. If that is no longer the case she would not be entitled to benefits.

If the deceased husband was earning enough to be able to afford to support a stay-at-home parent and kids then surely there must be some kind of life insurance or spousal pension she can live off. She should talk to his former employers to see what's available - these things are often officially "discretionary" because if they were a legal entitlement they would form part of the estate of the deceased and be liable for inheritance tax.

As I said, under EU and domestic law she has a retained right of residence because her husband was a qualified person and Ive already told you what she needs to do.

In addition to those rights she has the right to reside in any case as an EU member as a worker, former worker (somebody who cannot now work due to illness) or person seeking work. Under the work seeking criteria she can claim JS A and tax credits but must be seeking work.

I'm not going to keep repeating myself.

Thank you for your advice. Will try what you suggest Joe66.

Surely as an EU national she is allowed to be here, work, claim benefits and use the NHS irrespective of where her husband was from?

@PiperPublickOccurrences no I think that's brexiteer propaganda.

She would have to pass the habitual residents test, then she would be entitled to 6 months jsa. She will not be entitled to housing benefit (that was stopped in 2014) if she passes the test she will have to wait up to 6 weeks for a payment and prove that she is looking for employment. Her best chance is to argue that the children are settled.